COURT OF APPEALS OF VIRGINIA
Present: Judges Beales , Decker and Russell Argued at Richmond, Virginia

VIRGINIA BOARD OF MEDICINE OPINION BY v. Record No . 1281-16-2 JUDGE MARLA GRAFF DECKER MARCH 21, 2017 JOHN HENRY HAGMANN, M.D.

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Joseph J. Ellis, Judge Erin L. Barrett, Assistant Atto rney General (Mark R. Herring, Attorney General; Cynthia V. Ba iley, Deputy Attorney General; Allyson K. Tysinger, Senior Assi stant Attorney General, on brie fs), for appellant. Ramon Rodriguez, III, M.D. (Chris tina M. Dwyer; RawlsMcNelis, P.C., on brief), for appellee.
The Virginia Board of Medicine (the Board) appeals a ruling of the circuit court holding that it violated the due proce ss rights of John Henry Hagmann, M.D., when it denied his motion for a second continuance of an a dministrative hearing under the Virginia Administrative Process Act (VAPA), Code §§ 2.2-4000 to -4 301, resulting in the revocat ion of Hagmann’s license to practice medicine. Hagmann raise s several related assignments of cross-error. We hold that the circuit court erred by ruling that the Board should have grante d the motion for a continuance. We further hold that the circu it court did not err in the ways alleged by Hagmann. Consequently, we reverse the circuit court’ s ruling in part, affirm it in par t, and remand this case to the circuit court with directions that it re instate the judgment of the Board revoking Hagmann’s license to practice medicine.PUBLISHED- 2 - I. BACKGROUND By letter dated March 12, 2015, the Board of Medicine notified Hagmann that it had summarily suspended his license t o practice medicine and schedu led a formal administrative hearing for April 22, 2015. 1 The complaint supporting the suspension was based on Hagmann’ s actions as the owner of a com pany through which he taught vario us courses to students at a federal military medical school. The allegations originated fr om a claim filed in February 2014 with the Board by the school. The claim centered mainly on Hag mann’s conduct in operational medical school courses in 2012 and 2013. The alleged conduct i nvolved allowing th e students to perform, upon each other and Hag mann, invasive medical procedur es that were unapproved and not undertaken in good faith for med icinal or therapeutic purpo ses, as well as Hagmann’s performing such procedures on som e of his students. The allega tions also included Hagmann’s encouraging students to use a lcohol and various drugs in unappr oved and dangerous ways. Additionally, Hagmann was accused of providing medical treatmen t, including prescriptions, without keeping adequate recor ds. Along with notice of the all egations and hearing date, the Board provided Hagmann with ni ne volumes of exhibits. In late March 2015, Hagmann, apparently acting pro se , requested and received a continuance of the scheduled April 22 hearing date. About six weeks later, by letter of May 7,

1 The Board both prosecutes and adj udicates cases involving lice nses to practice medicine, but different arms of the Board handle these differen t functions. See Code § 54.1-2400(7), (9), (11); Va. Bd. of Med. v. Zackrison, __ Va. App. ___, ___ n.2, ___ S.E.2d ___, ___ n.2 (Mar. 14, 2017); see als o Hladys v. Commonwealth, 235 Va. 145, 147-48, 366 S.E.2d 98, 99-100 (1988) (holding that absent “evidence of bias or improper conduct,” allowing “a single state agency” to “i nvestigate[], prosecute[], and dec ide[] a case” that resulted in the termination of a contract betwee n the Virginia Medical Assistan ce Program and a physician provider did not violate the phys ician’s procedural due process rights). In the instant opinion, unless context suggests otherwise, “we use the term ‘Board’ whe n referring . . . to the Virginia Board of Medicine acting . . . in i ts adjudicative capacity and the term ‘Commonwealth’ when referring to the . . . Board . . . acti ng in its prosecutorial capacity.” Goad v. Va. Bd. of Med., 40 Va. App. 621, 623 n.1, 580 S.E.2ds 494, 495 n.1 (2003).- 3 - 2015, the Board notified him that it had rescheduled the hearin g for June 19, 2015. Along with the letter, it enclosed an additional exhibit. By letter of May 8, 2015, Ramon Rod riguez, III, notified the B oard that he had been retained to represent Hagma nn. Rodriguez requ ested a second co ntinuance, until the Board’s next scheduled meeting date i n October 2015. The Board, throug h the chair of the panel assigned to hear the case, deni ed the motion for a second conti nuance. The panel chair also denied the motion for reconsid eration of that decision. Based on those rulings, Rodriguez moved to disqualify the panel chair fr om hearing the case. The Board denied the motion. Rodriguez notified the Board of Hagmann’ s ongoing objections to its rulin gs and made clear that neither Rodriguez nor Hagmann, nor anyone on Hagmann’s behalf, would at tend the June 19, 2015 hearing. Rodriguez did, however, s ubmit twenty-two exhibits fo r the Board’s consideration in Hagmann’s defense. At the June 19, 2015 hearing, the Board took evidence, includi ng testimony offered by the Commonwealth. It also heard a rgument from the Commonwealth . Hagmann did not appear, nor did any attorney appear on his behalf. After a hearing tha t lasted over six hours, the Board voted to revoke Hagmann’s licen se to practice medicine and subs equently issued an order reflecting that revocation. Hagmann appealed the Board’s de cision to the circuit court, as signing error on six grounds, covering the same issues raised as assignments of erro r and cross-error in the instant appeal. The court, after heari ng argument, concluded that by d enying Hagmann’s motion for a second continuance, the Board di d not afford him “adequate time to prepare a defense.” The circuit court also noted that in light of the suspension of Hag mann’s medical license prior to the hearing, the Commonwea lth would not suffer “substantial harm” f rom a continuance. The court consequently ruled that the Bo ard violated Hagmann’s due proces s rights by “denying [him] a- 4 - meaningful opportunity to have coun sel present at the June 19, 2015 hearing.” Accordingly, the court remanded the matter to t he Board for a new hearing. The court specificall y rejected the doctor’s claim that the denial of the second continuance violat ed his personal right to be present. It also rejected the claim that th e Board’s panel chair should have recused himself. The Board noted this appeal.
II. ANALYSIS The Commonwealth contends on appeal that the circuit court err oneously reversed the Board ruling denying Hagmann’s motion for a second continuance. On cross-error, Hagmann avers that despite the circuit co urt’s favorable ruling regardi ng his request for a second continuance, it erroneously rej ected several other claims that the Board violated his procedural due process rights. A. Standard of Review On appeal of agency action under the VAPA, the party complaini ng bears the “burden of demonstrat[ing] an error . . . subject to review.” Code § 2.2- 4027. The circuit court’s role in such an appeal “is equivalent t o an appellate court’s role in an appeal from a trial court” ruling. Comm’r v. Fulton, 55 Va. App. 69, 80, 683 S.E.2d 837, 842 (2009 ) (quoting Sch. Bd. v. Nicely, 12 Va. App. 1051, 1062, 408 S.E.2d 545, 551 (1991)). In an app eal to the circuit court and the Court of Appeals, the reviewing c ourt may examine the agency de cision for “(i) accordance with constitutional right,” “(ii) com pliance with statutory authorit y,” “(iii) observance of required procedures where any failure the rein is not mere harmless error , and (iv) the subs tantiality of the evidentiary support for findi ngs of fact.” Code § 2.2-4027; se e Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988). Pure questions of law are reviewed de novo . Code § 2.2-4027; see Va. Ret. Sys. v. Blair, 64 Va. App. 756, 763-64, 772 S.E.2d 26, 29-30 (2015). However, where a decision is within the- 5 - discretion of the agency, “judicial interference is permissible only for relief against . . . arbitrary or capricious action that cons titutes a clear abuse of . . . de legated discretion.” Johnston-Willis, 6 Va. App. at 244, 369 S.E.2d at 8 (quoting Va. Alcoholic Beverag e Control Comm’n v. York St. Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979)). A bo dy “by definition abuses its discretion when it makes an erro r of law.” Porter v. Commonwea lth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). Regarding subsidiary factual fi ndings, the reviewing court mus t view the facts “in the light most favorable to sustain ing the agency’s decision.” Bla ir, 64 Va. App. at 770, 772 S.E.2d at 32. Credibility determinations are factual findings subjectto this same standard. Fulton, 55 Va. App. at 80, 683 S.E.2d at 842. The scope of judicial revie w of an agency exercising its “fact finding function . . . is ‘severely limited, partly in deferenc e to the agency’s expertise in a specialized field.’” Ga. -Pac. Corp. v. Robinson, 32 Va. App. 1 , 4, 526 S.E.2d 267, 268 (2000) (quoting Metro. Cleaning C orp. v. Crawley, 14 Va. App. 261, 266 , 416 S.E.2d 35, 38 (1992)). The reviewing court may “reject [ the] agency’s factual findings only if, considering the record as a whole, a reasonable mind would necessarily come to a different c onclusion.” Blair, 64 Va. App. at 765, 772 S.E.2d at 30 (quoti ng Doctors’ Hosp. of Wi lliamsburg, LLC v. Stroube, 52 Va. App. 599, 607, 665 S.E.2d 862, 865 (2008)). It is in light of these legal pr inciples that we examine the p arties’ claims of error.
B. Due Process Framework All assignments of error and c ross-error on appeal involve all eged violations of Hagmann’s due process rights said to have occurred in the cours e of the revocation of his license to practice medicine. “Suspen sion of issued licenses . . . inv olves state action that adjudicates important interests of the licen sees. In such cases the licens es are not to be taken away without that procedural due process requ ired by the Fourteenth Amendmen t [of the Constitution of the- 6 - United States].” Mall Amusemen ts, LLC v. Va. Dep’t of Alcoholi c Beverage Control, 66 Va. App. 605, 613, 790 S.E.2d 245, 249 (2016) (quoting Bell v. Burson, 402 U.S. 535, 539 (1971)). Constitutional guarantees of procedural due process provide ce rtain “minimum requirements” that “must attend a dministrative hearings.” Hladys v. Commonwealth, 235 Va. 145, 147, 366 S.E.2d 98, 99 (1988) (citing Goldberg v. Kelly, 3 97 U.S. 254, 271 (1970)). These guarantees include “timely and ade quate notice, the right to pr esent evidence and confront adverse witnesses, the right t o assistance of retained counsel, and . . . the right to an impartial decision maker.” Mall Amus ements, 66 Va. App. at 613, 790 S.E. 2d at 249. The VAPA provides similar protections: It states that parties to formal hearings “shall be given reasonable notice” of not only the “time, place, and nature thereof” but a lso the “matters of fact and law asserted or questioned by the agency.” Code § 2.2-4020(B). It further provides that in all such proceedings, “the parties shall be entitled to be accompanied b y and represented by counsel, to submit oral and documentary e vidence . . . , [and] to conduct c ross-examination.” Code § 2.2-4020(C). Finally, Virginia law, like constitutional proc edural due process, entitles a respondent in an administrative hearing to “an impartial decisi on-maker.” Hladys, 235 Va. at 147, 366 S.E.2d at 99; see Code § 54.1-110 (providing a mechani sm for disqualifying a hearing officer or panel member in a he aring conducted by a board overs eeing a profession or occupation). Along with the general legal prin ciples applied to administrat ive appeals, we examine the parties’ assignments of error th rough the lens of these constitutional and statut ory principles. C. Motion for Second Continuance The Commonwealth argues that, c ontrary to the ruling of the ci rcuit court, the Board’s denial of Hagmann’s motion for asecond continuance did not vio late his right to counsel of his- 7 - choosing or to adequate notice of the new evidentiary hearing d ate. On cross-error, Hagmann avers that the circuit court erroneously rejected his claims th at the Board further violated his due process rights by denying the mo tion for continuance without gi ving adequate consideration to his inability to be present at the hearing and to confront the witnesses against him. The decision whether to grant a request for a continuance ordin arily lies within the discretion of the court or agenc y making the determination in the first instance. See Nationwide Mut. Ins. Co. v. Estate of Harrison, 64 Va. App. 110, 118, 765 S.E.2d 154, 158 (2014) (citing Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 3 4, 645 S.E.2d 261, 265 (2007)); cf. GTE Sprint Commc’n s Corp. of Va. v. AT&T Commc’ns of Va., 230 Va. 295, 306, 337 S.E.2d 702, 709 (1985) (corporati on commission proceeding). “[T]o entitle a party to a reversal” on the ground of refusa l of a continuance request, th e challenging party must clearly demonstrate that the hearing offi cer “abused [his] discretion a nd that injury resu lted to the party complaining.” Haugen, 274 Va. at 34, 645 S.E.2d at 265 (quotin g Rosenberger v. Commonwealth, 159 Va. 953, 957, 166 S.E. 464, 465 (1932)); see Code § 2.2-4020 (giving agency hearing officers authorit y under the VAPA to “dispose of procedural requests” and “regulate and expedite the course of the hearing”). Hearing officers, like circuit courts, “necessarily require a g reat deal of latitude in scheduling.” Morris v. Slappy, 461 U.S. 1, 11 (1983). Recogni zed difficulties relating to scheduling matters for disposi tion include “assembling the witn esses, lawyers, and jurors [or board panel members] at the same place at the same time, and th is burden counsels against continuances except for compe lling reasons.” Id. Whether an abuse of discretion has occurred must be determined in light of “th e circumstances present in [the] case, particularly in the reasons presented” to the heari ng officer “at the time the requ est is denied.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Due to the di scretionary nature of s uch a determination, “judges in- 8 - other courts might well grant a continuance in [particular] cir cumstances[,] [b]ut the fact that something is arguable does not m ake it unconstitutional.” Id. at 591. In sum, on appeal of a discretionary determination to gr ant or deny a continuance, unl ess an error of l aw is shown, the reviewing court may not substitu te its judgment for that of the judge or hearing officer who made the determination below. 1. Right to Counsel of One’s Choosing We first examine the Commonwealth’s assertion that the denial of Hagmann’s motion for a continuance did not deprive hi m of his due process right to c ounsel of his choosing. Hagmann suggests that the Sixth Amendme nt to the Constitution of the Un ited States entitles a criminal defendant to counsel of his choos ing and that a respondent in a n administrative hearing should be given that same right. Due process and the VAPA entitle a party to a formal hearing “ to be accompanied by and represented by counsel” if he s o desires. Goldberg v. Kelly, 3 97 U.S. 254, 271 (1970); see Code § 2.2-4020(C). However, the rightto counsel provided to crimi nal defendants by the Sixth Amendment does not apply in civil matters before state administ rative agencies. See, e.g., Turner v. Rogers, 564 U.S. 431, 441 (2011). We hold that, what ever the precise contours of the right to counsel in the administr ative context, the outer limit s of the right to particular counsel in an administrative proceeding, ins ofar as a request for a contin uance is concerned, are certainly no greater than the right provide d to a criminal defendant. Apply ing the criminal standard to the facts of this case, we conclude that the Board’s denial of the motion for a continuance did not amount to a denial of Hagmann’s due process right to counsel. “[T]he essential aim” of the r ight to counsel in the criminal context is “to guarantee an effective advocate for each . . . de fendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159- 9 - (1988). Consequently, “trial judge s necessarily retain the dis cretion . . . ‘to make scheduling and other decisions that effectivel y exclude a [litigant’s] first c hoice of counsel.’” Huguely v. Commonwealth, 63 Va. App. 92, 107, 754 S.E.2d 557, 564 (2014) ( quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006)); see Ky. W. Va. Gas C o. v. Pa. Public Util. Comm’n, 837 F.2d 600, 618 (3d Cir. 1988) (decided under the Fed eral Administrative Procedure Act). Accepted standards of review acknowledge that “broad dis cretion” must be afforded to determinations regarding con tinuances and that “only an unreaso ning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for d elay’ violates the right to the assistance of counsel.” Morris, 461 U.S. at 11-12 (quoting Ung ar, 376 U.S. at 589). Here, Hagmann maintained that he had the right not just to an attorney but to a specific attorney and, in essence, that th is right superseded the Board’ s discretion under Code § 2.2-4020 to “dispose of procedural reque sts” and “regulate and expedite the course of the hearing.” The evidence, viewed under the proper standard, supports the Board panel chair’s rejection of this argument. Hagmann had already re ceived one continuance and had more than three months to retain counsel and prepare for hi s hearing after receiving the initial notice of s uspension. When the matter was rescheduled for a week during which Hagmann’s ne wly retained attorney, Rodriguez, had a conflict, Hagmann requested a second continuan ce. The initial request provided no explanation regarding the basis for his attorney’s conflict. Only after the motion had been denied did Rodriguez explain why he was unavailable. Additionally, in asking the Boar d to reconsider the denial of the motion for a second continuance, Hagmann argued merel y that he was entitled to a co ntinuance to preserve his right to counsel of his choosing. He provided no indication that any attempt had been made to arrange for substitute counsel, either inside or outside Rodriguez’s law firm, despite evidence in the record that Rodriguez’s firm hel d itself out as “Lawyers for Co mplex Medical Cases” and that- 10 - the firm had four different offices in Virginia. The Board pan el chair also expressly found that “[t]here are a significant numb er of attorneys within the Commo nwealth able to assist [Hagmann] with his administrativ e hearing[] and likely several [who] work directly with Mr. Rodriguez.” The record, view ed in the light most favorable to the Commonwealth and through the lens of the agency’ s expertise in this area, supports the Board’s ruling regarding the preservation of Hagmann’s rightto counsel. See Ga.-Pac. Corp. v. Robinson, 32 Va. App. 1, 4, 526 S.E.2d 267, 268 (2000) (requiring deference to agency expertise on factual findings). Consequently, the Board, in keepi ng with analogous principles in the criminal context, did not abuse its discretion by rej ecting Hagmann’s claim that he was entitled to a second continuance because his attorney of choice was unavailable. Se e Huguely, 63 Va. App. at 107, 754 S.E.2d at 564; see also Mor ris, 461 U.S. at 13-14 & n.6 (re jecting the notion that the absence of a “meaningful relationshi p” between the a ccused and his atto rney is “the equivalent of no counsel” under the Sixth Amendment). 2 Further, in the circu it court, Rodriguez c onceded that Hagmannhad signed an agreement retaining his firm , not him personally, and that another attorney in his firm rou tinely represented doctors in proceedings before the Board. Rodriguez also conced ed that he never contacted that attorney regarding whether he was available to represent Hagman n at the Board hearing on June 19, 2015. Contrary to the decision of the circuit court, these factual representa tions support the

2 Persuasive authority supports t his result. Cf. In re Franks F lower Express, 219 N.L.R.B. 149, 149 (1975) (holding tha t no due process violationof right to counsel of choice under the Federal Administrative Procedure Act occurred where the party’s orig inal attorney became ill and his firm had five days to arrange for substitute counsel); Rehab. Facility at Austin, Inc. v. Cooper, 962 S.W.2d 151, 155-56 (Tex. App. 1998) (holdin g that no due process violation occurred in medical malpractice ca se where the hospital’s lead attorney developed a scheduling conflict ten days prio r to trial and the court denied a continu ance because the hospital continued to be represented by an attorne y in the same firm who had signe d pleadings and engaged in pretrial discovery).- 11 - conclusion that the Board’s deni al of the motion for a second c ontinuance did not deprive Hagmann of his due process ri ght to retained counsel. Other factors articulated by the Board also support its denial of the motion to continue the case despite counsel’s scheduling c onflict. Complications exis ted regarding rescheduling the victim witnesses, all of whom were members of the military, to testify in person in October 2015 because they would no longer be students at that time and would be engaged in mandatory field exercises in more than one bran ch of the armed services. See, e.g., Bolden v. Commonwealth, 11 Va. App. 187, 193, 397 S.E.2d 534, 538 (1990) (recognizing the impact of a continuance on the opposing party’s witnesses as a factor in assessing whether the court abused its discretion in denying an additional continuance motion). The Board specifica lly indicated that it considered trying to postpone Hagmann’s hear ing for a shorter period of ti me, until August 2015, but that an insufficient number of Board mem bers would be available to prov ide a quorum. It also noted that, if postponed from June 2015, it could not guarantee that the matter could be heard on its October 2015 docket and, accordingly, that a continuance might result in postponi ng the hearing until February 2016. Although the record did not establish whe ther any of the victims would be available to testify in Febru ary 2016, it was undisputed that t hey would no longer be in school at that time and that securing their attendance would present adde d difficulties. Additionally, regardless of the purpose of Code § 54.1-2408.1’ s requirement that the Board hold a hearing in a “reasonable time” after a suspension, the Board was permitted by the entire statutory scheme to consider the impact of the continuan ce on those other than the licensee. See Code §§ 54.1-100, - 2400, -2915. Despite Hagmann ’s express waiver of the protections of Code § 54.1-2408.1 shor tly after he asked for a second continuance, the Board was entitled to consider factors suc h as the effect of a continuanc e on the victims and other witnesses. See generally Barfield v. Commonwealth, 20 Va. App. 447, 453, 4 57 S.E.2d 786, 789 (1995)- 12 - (recognizing that granting a con tinuance carries the risk that the memories of witnesses will fade). 3 Finally, the fact that the Board had statutory authority to pe rmit the taking of de bene esse depositions pursuant to C ode § 2.2-4022 did not compel it to gr ant Hagmann’s motion for a second continuance. Although the Commonwealth might have been able to provide the testimony of any witnesses unable to attend the postponed heari ng by means of such depositions, the Board expressed a preferen ce for live test imony. Cf. Rowland v. Shurbutt, 259 Va. 305, 308, 525 S.E.2d 917, 919 (2000) (recognizing tha t where evidence is presented by deposition, the trial judge does not see and hear the w itness). It was within the di scretion of the Board to determine whether the circumstances al leged by the doctor as supporting h is request for a continuance, to a time at which the Commonwealth’s student witnesses were likely to be unable to testify in person, outweighed the benefit to the Board of hearing the witn esses testify, either in person or by telephone, and of being able to q uestion the w itnesses thems elves. See generally Mall Amusements, 66 Va. App. at 615, 790 S.E.2d at 250 (recognizing that a hearing officer, like a trial judge, does not err by “as k[ing] questions of witnesses w ho are testifying” as long as the questions are reasonable and unbias ed). Here, out of the nine witnesses who testified before the Board, the panel members actively questioned seven of them, inc luding all five of the former student victims. The panel me mbers would have been unable to q uestion the witnesses

3 Also, the Board chair reference d the “reasonable time” provisi on of Code § 54.1-2408.1 only in his original denial of the doctor’s motion for a second continuance on May 12, 2015. After Hagmann made clear in his motion to reconsider on May 20, 2015, that he waived the protections of the “reasonable time” provision of Code § 54.1-2 408.1, the Board did not specifically rely on it again. S ee Yarborough v. Commonwealth, 217 Va. 971, 978-79, 234 S.E.2d 286, 291-92 (1977) (“[W]e will not fix upon isolated sta tements . . . taken out of the full context in which they were made [] and use them as a predicate f or holding the law has been misapplied.”).- 13 - themselves if granting a continua nce had resulted in their havi ng to permit the five student witnesses to testify by de bene esse deposition. Accordingly, we hold that the Bo ard’s denial of Hagmann’s moti on for a second continuance did not deprive him of his due process right to cou nsel of his choosing. Hagmann’s right to counsel of his choosing w as not absolute, and the Boar d was entitled to exercise its discretion in weighing v arious other factors relevant to the de cision, including the availability of substitute counsel, a quorum of the Board, and witnesses. The circuit court erred by ruling to the contrary. 2. Right to Meaningful Notice of Hearing The circuit court ruled that th e Board, by refusing to resched ule the hearing a second time, “did not afford [Hagmann] adequate time to prepare a defe nse to a matter the Board had been investigating for over a ye ar prior to providing [the doct or] with notice of hearing.” The Commonwealth points out that th e court based its ruling on the date on which the Board provided Hagmann “with notice of [ the rescheduled] hearing”—May7, 2015. It argues that the court erroneously concluded, the refore, that Hagmann had only s ix weeks’ notice of the hearing and that this period of time viol ated his constitutional right to due process. Viewing the record under the proper standard, we hold that the circuit court erred in reversing the Board’s determination that Hagmann had a dequate notice of the hearing t o satisfy due process concerns. Under settled principles, [a]n elementary and fundamental r equirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pende ncy of the action and afford the m an opportunity to present their ob jections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make thei r appearance. But if with due reg ard for the practicalities and peculiarities of the case thes e conditions are reasonably met, the constitutional require ments are satisfied.- 14 - Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 314-15 (1950), quoted with approval in Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d 7 23, 726 (1980); see Crystal Oil Co. v. Dotson, 12 Va. App. 1014, 1018, 408 S.E.2d 252, 254 (199 1). Hagmann received notice of the June 19, 2015 hearing date six weeks in advance. However, he received notice of the license suspension and the v ast majority of the Commonwealth’s evidence on M arch 13, 2015, which was fourteen w eeks in advance. Only one exhibit, the case addendum dated March 13, 2015, was provided t o the appellant in conjunction with the hearing notice of May 7, 2015. That exhibit comprises 50 pages of what the doctor represents is a total of about 3,000 pages of evidentiary mater ial. Accordingly, Hagmann had about 2,950 pages of the Commonwea lth’s exhibits fourteen weeks in advance. Further, of those 2,950 pages, about 2,800 were produced by Hagmann himself. 4 Thus, the record shows that only about 150 pages of the materials provided to Hagmann fourteen w eeks in advance, in conjunction with the summary s uspension of his license, compris e documents produced by the Commonwealth. The only document provided to Hagmann six weeks in advance—the 50-page case addendum—describes a March 9, 2015 vi sit by three investigators to Hagmann’s training facility in Partlow, Virginia, where he m aintained a classroom and stora ge area. The addendum includes a one-page statement from Dr. H agmann and approximately half-pa ge summaries of interviews with five students who apparentl y were on the premises at the t ime of the visit. The remaining forty-five pages are supporting do cumentation that consists mai nly of photographs of the Partlow facility, the medications sto red there, and va rious packing lis ts and drug logs. Therefore, once

4 About 2,300 of the 2,950 pages of documents are exclusively “c ourse materials” of Hagmann’s company, which were produced by him prior to the lice nse suspension and appear largely irrelevant to the alle gations before the Board. Additi onally, Hagmann does not dispute that another approximately 500 page s of documents comprise evid ence that originated with or was collected from him.- 15 - again, the bulk of the evidence wa s information that Hagmann al ready possessed. Although Hagmann’s personal familiarity with these documents would not r elieve his counsel of the need to review them in preparation for the hearing, this familiarity certainly allowed Hagmann to better assist his attorney in pr eparing in a more expeditious f ashion. The fact that the Board inves tigated Hagmann for about a year before summarily suspending his license did not e ntitle him to a longer period o f time in which to prepare for a hearing. Due process requires r easonableness, not equivalency. See, e.g., Back, 221 Va. at 417, 270 S.E.2d at 726. Additionally, the r ecord reflects that the Board completed its initial investigation in about a month and that much of the extra time that elapsed before it suspended Hagmann’s license was due to hi s own delays in responding to re quests from the Board. Accordingly, the record, viewe d under the proper standard, sho ws that Hagmann had a period of fourteen weeks during w hich he and his attorney, if h e had promptly retained one, could have reviewed the manageab le amount of evidence, sought a dditional discovery, and made tentative arrangements for any necessary witnesses. 5 Cf. Miller v. Grier S. Johnson, Inc., 191 Va. 768, 772, 62 S.E.2d 870, 872 (1951) (holding that a litigan t’s lack of diligence in retaining counsel did not provide grounds f or a continuance), cited with approval in Haugen, 274 Va. at 33, 645 S.E.2d at 264. Substitute counsel would then have had six weeks to familiarize himself with the case and take additional steps to prepare for the hear ing. The panel chair who ruled on the motion was a licensed physician. Consequently, he was well situated to assess the time that Hagmann and his attorney, who was also a licensed physician, wo uld realistically need to review

5 Rodriguez first informed the Board that he was representing Ha gmann on May 8, 2015, the day after the Board notifie d Hagmann that it had reschedule d the hearing for June 19, 2015. Rodriguez represented at oral ar gument in this Court that he be lieved Hagmann retained him in late April 2015.- 16 - the evidence for the purpose of responding to the allegations i n the complaint. 6 See Ga. Pac. Corp., 32 Va. App. at 4, 526 S.E.2d at 268 (requiring particular appellate deference to factual findings influenced by agency expertise). For these reasons, w e hold that the circuit court’s ruling setting aside the Board’s de termination that Hagmann rec eived adequate notice of the hearing constituted the impermissible substitution of the court ’s judgment for the Board’s rather than the correction of an error of law. 3. Licensee’s Right to be Pres ent and Confront Witnesses The circuit court expressly rej ected Hagmann’s claim that the Board’s denial of the motion for a second continuance prevented him from exercising h is rights to be present at the hearing and to confront his accusers. Hagmann asserts in his f irst and second assignments of cross-error that these rulings were erroneous. We hold that th e record supports these rulings by the circuit court. Due process includes the right of a respondent in an administr ative proceeding to be present at a hearing and to confront his accusers. See, e.g., Hladys, 235 Va. at 147, 366 S.E.2d at 99. However, when a party’s motion for a continuance has been denied, he may not manufacture prejudice where it would otherw ise not exist simply by “fail[in g] to offer evidence or . . . [proceeding] without counsel.” Ungar, 376 U.S. at 589; see Ven able v. Venable, 2 Va. App. 178, 182, 342 S.E.2d 646, 649 (1986); cf. Boddie v. Connecticut , 401 U.S. 371, 378-79 (1971) (noting in the civil context th at “the hearing required by due process is subject to waiver”).

6 Even using the time period of s ix weeks, the record does not e stablish an abuse of discretion by the Board. The Boa rd was entitled to consider th e totality of the circumstances, including: the interest of the victims in a prompt resolution of the charges; the difficulty rescheduling the Commonwealth’s witnesses a second time due to mandatory field exercises and other deployment-related issues; and the problems associated wi th rescheduling at the Board level, including docket management and panel member availability. These circumstances further support our conclusion that the ci rcuit court erred in setting aside the Board’s determination.- 17 - Hagmann’s claim is based on his al legation that he had pre-exi sting plans for international travel. The Boar d was entitled to reject Hagmann ’s evidence regarding the prescheduled nature of his trip. See, e.g., Blair, 64 Va. App. at 770, 772 S.E.2d at 32 (setting out standard of review for factual fi ndings). Neither his first mo tion for a continuance, made in March 2015, nor his second such motion, made on May 8, 2015, me ntioned Hagmann’s trip. Not until his motion for reconsid eration of the denial of the s econd continuance, which he made less than a month before the sch eduled June 19 hearing, did he first mention his planned trip. Also at that time, he described the trip as an “annual” one. T he Board panel chair noted that the failure to mention the trip sooner caused him to question the a dvance nature of those plans. This was an inference that the panel chair was entitled to draw in h is role as fact finder and to which the circuit court was required to defer because the record cont ained evidence to support it. See Ungar, 376 U.S. at 591. Additionally, Hagmann’s credit car d statement shows that he di d not book his flight until March 28, 2015. The booking, therefore, occurred after he received notice of the license suspension and obtained his first continuance, at a time when h e did not know the date for which the hearing would be reschedul ed. The record also contains no evidence that he presented the Board with any “avoid” dates when he requested the first continuance. Finally, the Board found that if Hagmann had wanted to attend the June 19 hearing, he co uld have changed his return flight to a day or two prior t o the hearing. This finding was not plainly wrong. Consequently, the record full y supports the circuit court’s ru ling that the Board’s denial of the second continuance mo tion did not violate the doctor’s d ue process rights to be present and to confront adverse witnesses.- 18 - D. Disclosure of Evidence Hagmann, in his third assignment of cross-error, asserts that the circuit court erred in concluding that the Board’s “fa ilure to require complete disclo sure of evidence” did not violate his due process right to an imp artial hearing. The record show s that the evidence Hagmann sought comprised summaries of the statements of various witness es that the Uniformed Services University of Health Sciences (USUHS), a federal military medic al school, obtained during its internal investigation. Hagmann r eceived summaries of the stat ements of nine witnesses but argues that the Board “had a duty to require the USUHS to produ ce all thirty” of the witness statements because they could have contained exculpatory eviden ce. This claim fails on procedural grounds. A party in an administrative proceeding must make a specific, contemporaneous objection to a ruling in that proc eeding in order to challenge the ruling on appeal. E.g., Pence Holdings, Inc. v. Auto C tr., Inc., 19 Va. App. 703, 707-08, 454 S.E.2d 732, 734-35 (1995), cited with approval in Doe v. Va. B d. of Dentistry, 52 Va. App. 166, 176, 662 S.E.2d 99, 104 (2008) ( en banc ); see French v. Va. Mar ine Res. Comm’n, 64 Va. App. 226, 232 n .2, 767 S.E.2d 245, 249 n.2 (2015). Additionally, a litigant in such a proceeding may not “approbate and reprobate[,] . . . taking successive positions in the course of litigation that are e ither inconsistent with each other or mutually c ontradictory.” See, e.g., Mar v. Malveaux, 60 Va. App. 759, 768, 732 S.E.2d 733, 737 (2012) (quoting Rowe v. Commonwealth, 277 V a. 495, 502, 675 S.E.2d 161, 164 (2009)). Application of these principles e stablishes that Hagmann waive d this assignment of cross-error below. In the proceedings before the Board, Hagmann argued merely that he needed more time to gather and submit evidence himself. He did not co ntend that the Board had a duty to obtain additional witness statements for him, nor did he ask the Board to issue a subpoena for- 19 - the statements pursuant t o Code § 2.2-4022. In the circuit court, Hagmann initially complained that the Board “had a duty to r equire USUHS to produce all thirty witness statements.” Counsel for the Commonwealth replied that two federal investigations we re proceeding simultaneously, one involving the contracts of H agmann’s company with the feder al government and a second one involving “the practices in his classes.” Counsel further explained that the only witness statements that the Board received from the USUHS were the nine statements “from medical students having direct knowledge of [the doctor]” and “the prac tice in [his] classes.” Counsel also stated that the USUHS assert ed that the additional witness statements were not relevant and were unavailable due to federal privilege. Hagmann conceded th at the Board turned the nine witness statements it receiv ed over to him, that it could not t urn over evidence it did not have, and that it had no obligation to obta in the additional statemen ts for him. His argument in the circuit court, therefore, mor phed back into the initial claim that he had made before the Board— that the Board was required “to afford [him] the opportunity to [gather]” the evidence. See Mar, 60 Va. App. at 768, 732 S.E.2d at 737. In short, Hagmann failed to regis ter a contemporaneous objecti on to the Board’s failure to produce the additional witne ss statements. Further, he conc eded in the circuit court that the Board could not produce the additional statements because it di d not have them, and he argued merely that the Board was requi red to give him the opportunity to obtain the evidence. Consequently, he is barred from complaining on appeal that the circuit court erre d in not setting aside the Board’s ruling rega rding production of the additional statements.- 20 - E. Motion for Recusal Hagmann’s fourth assignment of c ross-error challenges the circ uit court’s affirmance of the Board’s decision not to disqua lify the panel chair due to a lleged bias. 7 He asserts that this ruling was both (1) a constitutional due process violation and (2) a failure to observe proper VAPA procedure. We hold first that only Hagmann’s non-constituti onal procedura l claim is properly before this Court on appeal. In the c ircuit court, Hagmann argued onl y that the denial of the recusal motion constituted a failure to observe proper procedure, not a violation of due process, and this was the ground on which the circu it court ruled on this point. Accordingly, to the extent that this assignment of cross-error raises a due process claim, the claimis barred by Hagmann’s failure to raise it below. See Fren ch, 64 Va. App. at 232 n.2, 767 S.E.2d at 248-49 n.2; cf. Stokes v. Commonwealth, 61 Va. App. 388, 396, 736 S.E.2d 330, 335 (2013) (noting that the contemporaneous objection principl es in Rule 5A:18 may bar cons titutional claims in criminal cases). Regarding Hagmann’s claim that the Board’s failure to order th e recusal of the panel chair was a failure to observe pr oper procedure, resulting in m ore than harmless error, the record does not support this claim. Pursuant to Code § 54.1-110(B), a Board member “shall disquali fy himself from a proceeding and withdraw from a ny case in which he cannot accord fair and impartial consideration.” The statute further provides that any party ma y request disqualification “by stating with particularity the grounds upon which it is claimed that fair and impartial consideration cannot be accorded.” Code § 54.1-110(B); see Va. Bd. of Med. v. Fetta, 244 Va.

7 Hagmann contends both that the panel chair erred in denying hi s motion and that the remaining Board members also er red in voting that recusal was n ot required. We consider these claims together.- 21 - 276, 283, 421 S.E.2d 410, 414 (1992). Finally, based on those allegations, “[t]he remaining members of the . . . panel shall determine whether the individu al should be disqualified.” Code § 54.1-110(B). The burden of proving s uch “bias or prejudice l ies with the party seeking recusal.” Prieto v. Commonwealth, 283 Va. 149, 163, 721 S.E.2d 484, 493 (2012); see Hladys, 235 Va. at 148-49, 366 S.E.2d at 100 (applying this standard inthe agency context). On appellate review of s uch a determination, state administrators “are assumed to be [people] of conscience and intellectual di scipline, capable of judging a particular controversy fairly on the basis of its own circumstances ” absent proof to the contrary. See Hladys, 235 Va. at 148, 366 S.E.2d at 100 (quoting Withrow v. Larkin, 421 U.S. 35, 55 (1975 )). Therefore, we apply an abuse of discretion standard i n reviewing a recusal decision. Rios v. Ryan Inc. Cent., 35 Va. App. 40, 45, 542 S.E.2d 790, 792 (2001). Hagmann argues that the panel chair’s denial of his motion for a second continuance, as well as the statements the ch air made in conjunction with the r uling, show that the chair was biased against him and should have been recused. We have already concluded that th e record supports the Board’s denial of the motion for a second continuance. See supra Section II.C. Th erefore, base d solely on the first part of Hagmann’s claim—that the mere fact of the denial of his motion for a second continuance showed bias per se —the record supports the circuit court’s determination that the Board panel did not commit procedural erro r. If every hearing officer who issued a pre-hearing ruling against a litigant were forced to recuse himself, multiple hearing offi cers would be required to resolve every such proceeding. This is simply not the proper legal sta ndard by which to gauge bias. Cf. Stamper v. Commonwealth, 228 Va. 707, 714, 324 S.E.2d 682, 686 (1985) (“The defendant’s motion points to several adverse rulings at trial as indication s that the judge was prejudiced- 22 - against him. But if this w ere the criterion of prejudice, no r ulings could ever be made which a party opposes.”). Consequently, we proceed to evalu ate the statements that the p anel chair made in conjunction with the ruling to dete rmine whether they compel a different outcome. Hagmann characterizes the panel chair’ s explanation of the denial of th e second continuance as a statement “that ‘[e]ven if good cause had b een shown, the motion [for a c ontinuance] would be denied. . . .’” (Alterations in or iginal). He argues that thi s statement “clearly s uggests prejudice” toward him and required that t he panel chair be recused. In analyzing the Board’s deci sion on this issue, we review sub sidiary factual findings in the light most favorable to sustaining the agency’s action. Bl air, 64 Va. App. at 770, 772 S.E.2d at 32. Additionally, when reviewi ng a recusal motion based on comments in the record, “those comments must be taken in the con text of the record as a whole. ” Prieto, 283 Va. at 164, 721 S.E.2d at 494. “[W]e will not fix upon isolated statements . . . taken out of the full context in which they were made[] and use th em as a predicate for holding the law has been misapplied.” Yarborough v. Commonwealth, 217 Va. 971, 978-79, 234 S.E.2d 286 , 291-92 (1977) (holding that where the judge’s statement s “furnish[ed] alternative base s, one correct and one erroneous, for his finding of defendant’s gu ilt,” the “judgment of convict ion” was not “plainly wrong or without evidence to support it ” and affirmance was proper). Viewing the record in this fash ion, we conclude that Hagmann t akes the panel chair’s comments out of context and omits a key portion of the chair’s explanation for his ruling. The panel chair’s statements, while perhaps inartfully phrased, sup port the conclusion that the statements amounted to the provi sion of alternative rationales for the continuance ruling. First, at the time when the panel chai r stated that the motion for a c ontinuance would be denied “[e]ven if good cause had been shown,” the only reason that Hagmann had given for requesting a- 23 - continuance was his attorney’s “unavoidable, preexisting schedu ling conflict that week.” Hagmann’s motion provided neither specific information regardin g the basis for his attorney’s conflict nor any explanation as to why another lawyer, in the s ame firm or a different one, could not represent him at t he scheduled hearing. 8 As a result, the panel chair concluded that Hagmann’s vague explanation regarding the unavailability of a s ingle lawyer within the firm was not a persuasive reason to gran t the motion for a second continuance. Viewing the record as a whole, the panel chair then said that even if Hagmann had shown good cause for a continuance ba sed on the unavailability of his attorney, the chair would have “denied [the motion] due to several additional reasons ,” which the chair t hen explained in detail. (Emphasis added). Those reasons included the multiple witnesse s scheduled to testify about the “sensitive allegations” and the c hair’s finding that rescheduli ng them to testify during the October 2015 time period reque sted by the doctor “would be extr emely problematic if not impossible” due to their military obligations. The panel chair also pointed to the possible negative impact on Hagmann and the system due to additional del ay in resolving the matter. Although the wording of the panel ch air’s ruling at this stage of the proceedings may have been somewhat inartful, a reasonabl e interpretation based on the rec ord is that even if he had given credence to Hagmann’s claims a bout his attorney ’s scheduling pr oblem, which counsel had not yet explained in any way, other factors, when weighed against those difficulties , counseled in favor of his denying the continuan ce. The evidence, so viewed, supports the circuit court’s conclusion that the Board did not a buse its discretion in refus ing to require the recusal of the panel chair under these circumstances.

8 Hagmann’s attorney provided addi tional information about his c onflict in his subsequent motion to reconsider the denial of the second contin uance motion. He did not, however, mention any effort to secu re alternate counsel for Hag mann, arguing instead that Hagmann was entitled to counsel of his choosing, a position we have rejected. See supra Section II.C.1.- 24 - III. CONCLUSION We hold that the circuit court erred by substituting its discr etion for the Board’s in reversing its denial of Hagmann’ s motion for a second continuan ce. We further hold that the circuit court did not err in rejec ting Hagmann’s claims that th e Board violated his due process rights by failing to properly cons ider his inability to be pres ent at the hearing, to confront the witnesses against him, to receiv e all relevant evidence, and to have a fair and impartial adjudication of the issues. Conse quently, we reverse the circu it court’s ruling in part, affirm it in part, and remand this case to the circuit court with directions that it reinstate th e judgment of the Board revoking Hagmann’s li cense to practice medicine. Affirmed in part, reversed in part, and remanded with instructi ons.